Colorado’s lawful activities statute reflects a legislative attempt to balance an employee’s right to engage in lawful activity away from work with an employer’s legitimate business interests and needs. To that end, the statute protects a broad range of off-the-job employee behavior by making it illegal for employers to terminate employees for lawful off-the-job activity. The Colorado Court of Appeals has held that marijuana use is not a lawful of-the-job activity, even though marijuana use has been legalized by the Colorado legislature. Coats v. Dish Network, L.L.C. 303 P.3d 147, 150 -151 (Colo. App. 2013). The Court reached this conclusion because activities conducted in Colorado, including marijuana use, are subject to both state and federal law, and marijuana use violates federal law. For an activity to be “lawful” in Colorado, it must be permitted by both state and federal law. An activity that violates federal law but complies with state law cannot be considered “lawful activity” under C.R.S. 24–34–402.5. A few years ago, the national and local news ran a story about a man who was employed by a company that distributes Budweiser beer and was fired for drinking a Coors. The man said that the company president’s son-in-law saw him sipping the Coors, and he was terminated two days later. If what the man said was true, then the employer may have violated the Lawful Activities Statute, C.R.S. § 24-34-402.5. This statute provides: “It shall be a discriminatory or unfair practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. . . .”
The statute applies only to employees, not job applicant. In addition, the statute enumerates three defenses:
- If the restriction on the conduct relates to a bona fide occupational requirement; or
- Is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
- Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. In the beer case, the employer claimed that the employee’s activity fell under all three exceptions–the employer stated that the employee was terminated to avoid a conflict of interest, and that his conduct was rationally related to a bona fide occupational requirement.
If you have been terminated in Colorado for engaging in lawful off-duty activities, contact Denver Employment Lawyer Gregory A. Hall to discuss your case.